Date:
20130327
Docket:
IMM-6134-12
Citation:
2013 FC 314
Toronto, Ontario,
March 27, 2013
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
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ZUZANA MINYUOVA, MILAN MINYU, KLAUDIA FOGELOVA AND KAROL MINYU
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicants seek judicial review under s 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] of a decision refusing their claim to
refugee or protected person status.
[2]
The
principal applicant, Zuzana Minyuova, and her family members are Roma from Slovakia. Her mother was a Czech Jew and, as a result, she claimed to have experienced
double discrimination growing up and living in a Slovak village. There are
discrepancies between the narratives recounting this discrimination due, in
part, to interpretation problems. The principal applicant’s narrative was
handwritten in Slovak, then translated to and typed up in Czech, then retranslated
to English. To correct the record, a later narrative by her husband was
submitted. The original Slovak document was misplaced. The claims of the other
family members were dependent on that of the principal applicant.
[3]
The
Member’s determinative finding was that the applicants had not
established on a balance of probabilities that state protection was unavailable
to them in the Slovak Republic. Issues of state protection are
reviewable on a reasonableness standard: Horvath v Canada (MCI), 2013 FC
95 at paras 29-32.
[4]
The
test for state protection is adequacy, rather than effectiveness. Where the
state in question, as here, is a functioning democracy with an official state
protection apparatus and functioning security forces there is a strong
presumption in favour of the state’s ability to protect: Carillo v Canada
(MCI),
2008 FCA 94 at paras 32, 36.
[5]
The
applicants contend that the Member erred in failing to assess the quality of
the state’s efforts and ignored objective documentary evidence. It was not
enough, they argue, that the country was making serious efforts to address
criminality, corruption, and deficiencies in its laws and procedures.
Protection would not be forthcoming when needed and it would be unreasonable
for them to seek protection from the Slovak state given their experience, they
contend.
[6]
Each
case must be determined on its own facts as established by the evidence. This
is not a case such as Cervenakova v Canada (MCI) 2012 FC 525 where the
Board had failed to properly weigh the documentary evidence, its analysis was
vague and there was an insufficient basis for the adequacy conclusion.
[7]
Here
the Board conducted a forward-looking analysis, considered the mixed country
condition evidence before it and was clearly aware of the shortcomings of the protection
available to Roma in the Slovak Republic. Its conclusion that the protection
was adequate was open to it on the basis of the evidence. It is trite law that
the Board does not have to cite every piece of evidence in the decision. There
is no indication that it ignored evidence which was contrary to its findings. Its
analysis was thorough and well-reasoned.
[8]
The
Board clearly set out and applied the correct “clear and convincing evidence”
test for state protection. The onus was on the applicants to satisfy the test
on a balance of probabilities. This they did not do. It did not help their case
that they left the country in search of surrogate protection just a few days
after the last incident complained of and before the police could properly
investigate it. There cannot be said to be a failure of state protection where
a government has not been given an opportunity to respond: Castro v Canada
(MCI), 2006 FC 332 at paras 19-20. Moreover, a claimant cannot rebut the
presumption of state protection by asserting only a subjective reluctance to
engage the state: Molnar v Canada (MCI), 2012 FC 530 at para 92.
[9]
The
Board Member made a number of negative credibility findings which stemmed from
discrepancies between the narrative and the applicants’ testimony at the
hearing. The existence of contradictions in the evidence is a well established
basis for finding a lack of credibility and the weighing, interpretation and
assessment of evidence are within the Board’s domain.
[10]
In
this instance, the Member clearly outlined his reasons for the negative
credibility finding and there were valid reasons to doubt the truthfulness of
the testimony. This is not a case in which the presumption of truthfulness
arises, as there were reasons to doubt the applicants’ evidence: Goshi
v Canada (MCI), [2000] FCJ No 735 (QL) (TD) at para 14.
Nonetheless, the Board considered the allegations of persecution despite its
concerns, and found that the state response had been adequate.
[11]
The police had
responded to a 1992 incident outside a school and to another when an object was
thrown through a window. An incident involving a gun was described by the press
as a clash between mothers of adolescents, to which the police had responded.
The police had said that they would investigate the November 2009 bus stop
incident but the applicant and her family left the country before they could do
so.
[12]
The
Member also found that several of the incidents related by the applicants did
not amount to persecution. Cumulative discrimination may amount to persecution
in some cases but the Court should not interfere with the Board’s finding on
the evidence unless it appears to be unreasonable: Sagharichi v
Canada (MEI)
(1993), 182 NR 398 (FCA) at para 3. There is no basis for such a finding in
this case.
[13]
In
the result I find that the Board came to a conclusion that is transparent,
justifiable and intelligible and within the range of acceptable outcomes based
on the evidence before it and the law: Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190 at paragraph 47; Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph 46.
[14]
No
questions were proposed for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is dismissed. No
questions are certified.
“Richard G. Mosley”
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